A High Court decision on search warrants

The execution of a search warrant is a powerful evidence gathering tool for law enforcement officers. The power to search is regarded by the courts as an exceptional power, to be exercised only under certain conditions. The legislative conditions that govern the issue of search warrants are observed by courts to be an important safeguard to protect an individual from arbitrary invasion of their privacy, which is a recognised human right. To give effect to these safeguards, the courts insist on strict compliance with the statutory conditions for a warrant.

A common legislative condition that governs search warrants is the requirement to state the offence to which the search warrant relates. The protective purpose of such a condition is so that the executing officers and those affected by the warrant understand the object of the search and the limits to the scope of the search. The condition to state the offence was recently considered by the High Court of Australia in Smethurst & Anor v Commissioner of Police & Anor [2020] HCA 14. On 15 April 2020, the High Court ruled unanimously that the search warrant used to obtain materials from journalist, Annika Smethurst’s, home was invalid as the offence had not been sufficiently stated and had been misstated. It followed that the entry, search and seizure were not authorised by the search warrant and were therefore unlawful.

The High Court was then required to determine what relief should be granted. The Plaintiffs did not seek any claim for damages for trespass but did seek an injunction either requiring the destruction or delivery up of the information taken from Ms Smethurst’s mobile phone during the search warrant or restraining the information being made available to the prosecuting authority. The High Court was divided on whether the Australian Federal Police should be forced to hand back the material and observed that there are strong discretionary considerations to deny the injunctive relief sought. It has long been accepted that the courts will refuse to exercise their discretion to grant equitable relief when to do so would prevent the disclosure of criminality which is in the public interest to reveal. The majority did not grant the injunction and decided there should be an order for certiorari quashing the search warrant.

Importantly, while the seized property was not ordered to be returned, the discretion under s 138 of the Evidence Act 1995 (Cth) will be a live issue in any prosecution that may follow. This case is a reminder for enforcement agencies of the importance of observing strict compliance with legislative provisions governing search warrants.

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